{"id":"alj-H406315-2025-09-16","awcc_number":"H406315","decision_date":"2025-09-16","opinion_type":"alj","claimant_name":"Heath Davis","employer_name":"Peco Foods Inc","title":"DAVIS VS. PECO FOODS INC. AWCC# H406315 September 16, 2025","outcome":"granted","outcome_keywords":["granted:2"],"injury_keywords":["shoulder","strain","sprain","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/DAVIS_HEATH_H406315_20250916.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAVIS_HEATH_H406315_20250916.pdf","text_length":17446,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H406315 \nHEATH DAVIS, EMPLOYEE      CLAIMANT \n \nPECO FOODS INC., EMPLOYER     RESPONDENT \n \nOCCUSURE CLAIMS SERVICES, LLC \nINSURANCE CARRIER/TPA      RESPONDENT \n \nOPINION FILED SEPTEMBER 16, 2025 \nHearing before Administrative Law Judge, James D. Kennedy, on the 29\nth\n day of July, \n2025, in Little Rock, Arkansas. \nClaimant is represented by Daniel Wren, Attorney at Law, Little Rock, Arkansas, who \nappeared at the hearing. \nRespondents are represented by Stephen Carmody, Attorney at Law, Jackson, \nMississippi, who submitted a brief on behalf of the respondents. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 29\nth\n day of July, 2025, to determine the sole issue \nof whether the Respondents are entitled to an independent medical exam of the claimant.   \nA copy  of  the  Pre-hearing Order filed  May  19,  2025, was marked “Commission \nExhibit 1” and made part of the record without  objection.  The  Order  provided  that  the \nparties stipulated that the Arkansas Workers’ Compensation Commission had jurisdiction \nof the within claim and that an employer/employee relationship existed on September 18, \n2024.  The Claimant reported an alleged work-related injury to his left bicep on or about \nSeptember 18, 2024, while performing a service growing out of and in the course of his \nemployment with the Respondent employer.  At the time of the injury, Claimant’s average \nweekly  wage  was  $1,125.10,  equating  to  a  temporary  disability  rate  of  $750.00  and  a \npermanent partial disability  rate of $563.00. Claimant  was treated by Dr.  Ron  Bates of \n\nHEATH DAVIS – H406315 \n2 \n \nWhite River Family Medical Clinic, and Dr. Joel N. Smith of Martin Orthopedics, for the \nreported injury.      \n The Claimant’s and  the Respondent’s contentions were all set  out  in  their \nrespective  responses  to  the  Pre-hearing Questionnaire  and  made a  part  of  the  record. \nThe claimant contends that he suffered a compensable injury on September 18, 2024, \nwhen  pulling  the  release  on  a  fifth  wheel.    The  claim  was  originally  accepted,  and  all \nbenefits were paid until December 17, 2024, after he was questioned by the Nurse Case \nManager, and when Dr. Joel Smith recommended surgery.  Dr. Smith affirmatively stated \nthat the claimant had suffered a work-related injury. (Com. Ex. 2) \nThe Respondents contended that the  relationship  of  employer  and  employee \nexisted on September 18, 2024, and Peco Foods, Inc. was a self-insured employer under \nArkansas  law. The  Respondents included  proposed medical  records  in  its  response to \nthe Pre-hearing Questionnaire. The Claimant reported an alleged work-related injury to \nhis left bicep on or about September 18, 2024, while performing services growing out of \nand in the course of his employment with the Respondent. The Respondents provided \nthe  Claimant with  prompt  medical  treatment which included treatment  at White  River \nFamily Medical Clinic with Dr. Ron Bates and later with Martin Orthopedics and Dr. Joel \nN. Smith, for the reported injury.  This treatment included two months of physical therapy \nfor bilateral shoulder pain, from the date of July 15, 2024, through September 17, 2024.  \nOn  September  19,  2024,  Dr.  Bates  assessed  the  claimant  with  non-specific  left  bicep \npain,  placed  him  on  restricted  duty,  and  referred  him  for  an  MRI  of  his  left  humerus.  \nClaimant underwent an MRI without contrast to his left humerus on October 1, 2024.  The \nMRI showed mild-to-moderate biceps tenosynovitis, with no other abnormalities, and no \n\nHEATH DAVIS – H406315 \n3 \n \nevidence  of  tears,  bone  contusions,  or  fractures.    On  October  2,  2024,  the  Claimant \nreturned  to  Dr.  Bates  following  his  MRI,  at  which  time  Claimant  first  reported  a  new \ncomplaint of pain in his left shoulder.  Dr. Bates noted that Claimant’s MRI showed mild-\nto-moderate tendonitis, but no evidence of tears to any muscles or tendons.  At that time, \nDr. Bates referred the claimant to an orthopedic specialist and released Claimant to return \nto work at full duty.  Claimant began treating with Dr. Smith on October 29, 2024.  Dr. \nSmith reviewed the prior MRI and noted its findings.  He then elected to send the Claimant \nfor an MRI of his left shoulder, which was performed on November 8, 2024.  Claimant \nthen returned to Dr. Smith following the MRI, which showed a partial subscapularis tear, \nalong   with   AC   arthritis,   glenohumeral   arthritis,   and   tendinosis   in   the   biceps, \nsupraspinatus/subscapularis.  Dr. Smith then assessed Claimant with adhesive capsulitis \nto his left shoulder and referred him for physical therapy.  Following a regimen of physical \ntherapy,  Dr.  Smith  recommended  surgical  intervention  for  Claimant’s  left  shoulder, \nspecifically a left shoulder arthroscopy with capsular release, SAD, DCR, possible RCR, \nand OIP.  Dr. Smith opined that Claimant’s left shoulder complaints and his need for the \nleft shoulder surgery were work related.   \nOn January 20, 2025, Dr. Sean Lager, at the request of the respondents, provided \na medical PEER Review of Claimant’s medical records, including Dr. Smith’s opinions on \ncausation and recommendations for surgical intervention.  Dr. Lager assessed Claimant \nwith a Grade 1 left bicep strain and Grade 1 left shoulder sprain/strain as it related to the \nreported work injury.  Dr. Lager further opined that Claimant’s work-related injury was not \na  major  contributing  factor  for the surgical  procedure  recommended  by  Dr.  Smith.  \nClaimant  would  achieve  maximum  medical  improvement  for  his  work-related  condition \n\nHEATH DAVIS – H406315 \n4 \n \nupon completing physical therapy, which Claimant had previously completed on January \n3, 2024.  To date, Respondent has paid $14,251.33 for TTD and $5238.50 for Medical in \nregard to the claim. (Com. Ex. 3) \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim.  \n \n2. That the  stipulations  set  out  above  are  reasonable and  are  hereby \naccepted.  \n \n3. It is determined that a preponderance of the credible evidence establishes \nthat the claimant should submit to an independent medical evaluation by an \nindependent  medical  provider  selected  by  the  Medical  Cost  Containment \nDivision of the Arkansas Workers’ Compensation Commission under A.C.A. \n11-9-511(a) and A.C.A. 11-9-811. The evaluation shall be at the expense \nof respondents and the claimant shall be entitled to mileage reimbursement \nfor any travel.  \n \n4. If not already paid, the respondents are ordered to pay for the cost of the \ntranscript forthwith. \n \n \nREVIEW OF TESTIMONY, EVIDENCE AND A BRIEF BY THE RESPONDENT \n \n The  Pre-hearing  Order  along  with  the  Pre-hearing  questionnaires of the parties \nwere admitted into the record without objection.  No in person testimony from a witness \nwas taken.  The claimant’s first exhibit consisted of a letter from Brea Burnett, a claims \nadjuster for OccuSure, directed to Dr. Joel Smith, of Martin Orthopedics, dated December \n20, 2024. \nThe letter provided that the claimant had treated with Dr. Ron Bates on September \n19,  2024,  complaining  of  left  bicep  pain,  and  denying  any  additional  complaints.    The \nclaimant  received  an  MRI  on  October  1,  2024,  and  the  images  provided  for  mild  to \nmoderate tenosynovitis.  Later on, October 2, 2024, the claimant reported new pain in his \n\nHEATH DAVIS – H406315 \n5 \n \nleft shoulder and after an MRI, Dr. Bates issued a full duty work release and then referred \nthe claimant to Martin Orthopedics and Dr. Joel Smith.  \n The letter provided that the claimant started treating with Dr. Smith on October 29, \n2024, that he received another MRI of the left shoulder on November 8, 2024, and the \nMRI demonstrated  a  partial  tear  of  the  subscapularis  tendon,  tendinosis,  and  mild  to \nmoderate degenerative changes throughout the shoulder.  The letter also provided that \nDr.  Smith  ordered  a  left  shoulder  arthroscopy  with  a  capsular  release  and  possible \nrepairs.  A review of current and prior PT notes revealed a history of bilateral shoulder \npain for 1.5 years.  Questions were then asked of Dr. Smith who answered as follows: \nThe claimant’s work-related injury of September 18, 2024, resulted in adhesive capsulitis \nand biceps tendinosis.  The work injury of September 18, 2024, to the left bicep, was the \nmajor  contributing  factor  for  the  recently ordered  surgery  and  the  claimant  has  not \nreached MMI. (Cl. Ex. 1, P. 1, 2) \n A Peer/Medical Review was requested by the respondents and was provided by \nDr.  Sean  Lager,  a  member  of  the  American  Board  of  Orthopedic  Surgery, with  a  sub-\ncertification in Sports Medicine.  Dr. Lager reviewed the medical files that were provided \nand  issued  an opinion which provided that  the claimant’s diagnosis as it related to the \nSeptember 18, 2024, work-related injury to his left bicep, was a grade 1 left bicep strain \nand  a  grade  1  left  shoulder  sprain/strain.    He  went  on  to state that  the  MRI  of  the  left \nshoulder  dated  November  11,  2024,  revealed  a  partial  articular  surface  tear  of  the \nsubscapularis  tendon  with  tendinosis  of  the  rest  of  the  subscapularis tendon and \ntendinosis  of  the  supraspinatus  tendon, with thickening  and a hyperintense  signal \ninvolving the inferior glenohumeral ligament.  This can be due to an injury or can be due \n\nHEATH DAVIS – H406315 \n6 \n \nto  adhesive  capsulitis,  mild  changes  of  osteoarthritis  in  the  glenohumeral  joint,  mild  to \nmoderate  degenerative  changes  in  the  AC  joint,  with  hypertrophic  spurs,  mild  lateral \ndown-sloping of the acromion, and edema along the articular margins of the AC joint.  Dr. \nLager  concluded that  based  upon  the  records  showing  that  the  claimant  had  bilateral \nshoulder pain for 1.5 years prior to the work injury, the work injury on September 18, 2024, \nto the left bicep, was not the major contributing factor for the need of the recently ordered \nsurgery. (Cl. Ex. 1, P. 3 -14) \n The records from the Arkansas Surgical Hospital and Dr. Joel N. Smith provided \nsurgery for the left shoulder that involved adhesive capsulitis and acromioclavicular joint \narthritis which occurred  on  March  19,  2025.    The  report  went  on  to  provide  that  the \nclaimant  suffered  from  severe  left  shoulder  pain  and  had a limited  range  of  motion.  \nFindings  were  consistent  with  acromioclavicular  joint  arthritis  and  adhesive  capsulitis.  \nThe  MRI  reported  concern  for  a  possible  partial  thickness  cuff  tear.    Diagnostic \narthroscopy was then performed. (Cl. Ex. 1, P. 15 -18) \n The Respondents submitted a Motion to Compel an Independent Medical Exam \nthat consisted of a total of 126 pages, which included legal arguments, forms, and medical \nrecords,  including  medical  records  that  predated  the  date  of  the  injury. The  Motion  to \nCompel an Independent Medical Evaluation went into great detail involving the history of \nthe claim and relied on A.C.A. 11-9-511 and A.C.A. 11-9-811.  The Motion also included \ndetailed medical records from Dr. Ron J. Bates dated September 19, 2024, in regard to \nthe claimant and going forward.  These documents included reports from physical therapy \nand documents also submitted by the claimant.  Pre-date of injury medical records were \n\nHEATH DAVIS – H406315 \n7 \n \nalso submitted which provided that the claimant had been receiving physical therapy for \nhis bilateral shoulders as far back as July 15, 2024. (Resp. Ex. 1, P. 1 – 112) \nDISCUSSION AND ADJUDICATION OF ISSUES \nThe sole issue  before  the  Commission  is  the  issue  of  requiring  the  Claimant  to \nsubmit  to  an  independent  medical  evaluation.    The Commission  has  faced this issue \npreviously.  Only  by  a  preponderance  of  the  evidence  can  it  be  established  that  the \nclaimant  must  submit  to  independent  medical  evaluation.  See  A.C.A.  §  11-9-705(a)(3) \n(Repl. 2012). The standard “preponderance of the evidence” means the evidence having \ngreater weight or convincing force. Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947).    \nThe determination of a witness’s credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission. White v. Gregg Agricultural Ent., 72 \nArk.  App.  309,  37  S.W.3d  649  (2001).  The  Commission  must  sort  through  conflicting \nevidence and determine the true facts.  In so doing, the Commission is not required to \nbelieve the testimony of the claimant or any other witness but may accept and translate \ninto  findings  of  fact  those  portions  of  the  testimony  that  it  deems  worthy  of  belief.  \nAdditionally, the Commission is authorized to accept or reject a medical opinion and is \nauthorized to determine its medical soundness and probative value. Poulan Weed Eater \nv. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002); Green Bay Packing v. Bartlett, 67 \nArk.  App.  332,  999  S.W.2d  692  (1999).  The  Commission  shall  weigh  the  evidence \nimpartially, without giving the benefit of the doubt to either party.  Ark. Code Ann 11-9-\n704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 (1989).  Further, the \nCommission has the duty to translate evidence on all issues before it into findings of fact.  \n\nHEATH DAVIS – H406315 \n8 \n \nWeldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996).  \nIn  the  present matter,  the  Commission  is  required  to  evaluate  the  conflicting  medical \nevidence and issued opinions. \nThe claimant was promptly and originally treated by Dr. Ron Bates of White River \nFamily  Medical  Clinic  and  later  referred  to  Dr.  Joel  Smith  of  Martin  Orthopedics  who \nreviewed the original MRI ordered by Dr. Bates and then ordered another MRI.  Dr. Bates, \nthe original treating physician, found mild to moderate tendonitis with no evidence of tears \nof any muscles or tendons and returned the claimant to work with no restrictions, but due \nto the claimant’s continued issues, referred the claimant to Dr. Smith at Martin Orthopedic, \nwho recommended surgical intervention of the claimant’s left shoulder, specifically a \nshoulder  arthroscopy.    This  surgery had  occurred by the  time  of  the  above  hearing in \nregard  to  the  Motion  to  Compel  an  Independent  Medical  Evaluation.    Dr.  Smith,  the \ntreating physician opined that claimant’s left shoulder complaints and need for the left \nshoulder surgery were in fact work-related.   \nThe  respondents obtained a  peer  review  by  Dr.  Sean  Lager which  included  Dr. \nSmith’s opinions on causation and his recommendations  for  surgical  intervention.    Dr. \nLager opined that the Claimant’s work-related injury was not a major factor for the surgical \nintervention by Dr. Smith.   \nIt is noted that the claimant was receiving bilateral shoulder physical therapy prior \nto  the  date  of  the  alleged  injury  and  that the  claimant  was  originally  receiving  benefits \nbefore they were stopped. It is also clear that there are competing medical opinions in \nregard to the treatment of the claimant’s injuries and what caused them.  A.C.A. 11-9-511 \n(a) provides that an injured employee claiming to be entitled to compensation shall submit \n\nHEATH DAVIS – H406315 \n9 \n \nto such physical examination and treatment by another qualified physician, designated or \napproved by the Workers’ Compensation Commission, as the Commission may require \nfrom time to time if reasonably necessary.  It is also noted that A.C.A. 11-9-811 provides \nthat upon its own initiative at any time where compensation payments are being made \nwithout an award, the Workers’ Compensation Commission may and in any case where \nthe rights to compensation has been controverted or where payments of compensation \nhave been suspended, or where an employer seeks to suspend payments made under \nan  award  or  an  application  of  an  interested  party,  the  Commission  shall  make  such \ninvestigation, cause such medical examination to be made, hold such hearings, and take \nsuch further action as the commission deems proper for the protection of all parties.   \nBased upon the above, and after weighing the evidence impartially, it is found that \nan independent medical examination would be beneficial to the fact finder in this matter \nand that a preponderance of the credible evidence establishes that the claimant should \nsubmit to an independent medical provider determined by the Medical Cost Containment \nDivision for the Arkansas Workers’ Compensation Commission under A.C.A. 11-9-511 \nand A.C.A. 11-9-811,  for  an  independent  medical  evaluation.    Further, it  is  found  and \ndetermined that the parties shall work together to expedite this evaluation.  The evaluation \nshall be at the expense of the respondents and the claimant shall be entitled to mileage \nreimbursement for travel.  If not already paid, the respondents are ordered to pay the cost \nof the transcript forthwith. \nIT IS SO ORDERED. \n  \n        ___________________________ \n        JAMES D. KENNEDY \n        Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H406315 HEATH DAVIS, EMPLOYEE CLAIMANT PECO FOODS INC., EMPLOYER RESPONDENT OCCUSURE CLAIMS SERVICES, LLC INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 16, 2025 Hearing before Administrative Law Judge, James D. Kennedy, on the 29 th day of July, ...","fetched_at":"2026-05-19T22:36:22.379Z","links":{"html":"/opinions/alj-H406315-2025-09-16","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/DAVIS_HEATH_H406315_20250916.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}